Citation Nr: 21065583 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 19-10 802 DATE: October 26, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a right lower extremity disability is remanded. FINDING OF FACT The Veteran's right ear hearing loss is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. § 1101, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. In October 2020, the Board granted service connection for left ear hearing loss, hypertension, tinnitus, and hemorrhoids. As this represents a full grant of the benefits sought, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). However, the Board remanded the remaining issues on appeal for further development which have been returned to the Board for further appellate review. 1. Entitlement to service connection for right ear hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). With regard to the merits of the Veteran's claim, the Veteran has asserted that he has right ear hearing loss as a result of acoustic trauma sustained while in active service. In his July 2021 VA audiology examination, the Veteran was diagnosed with right ear sensorineural hearing loss. Although he was previously denied service connection because his right ear did not exhibit hearing loss for VA compensation purposes, his current examination showed otherwise as his right ear exhibited thresholds of 30, 40, and 45 decibels in frequencies of 2000 Hertz (Hz), 3000 Hz, and 4000 Hz, respectively. See 38 C.F.R. § 3.385. Thus, the Veteran has a current disability for VA purposes. With regard to an etiology, however, the examiner found that the Veteran's right ear hearing loss was unrelated to service since there was no significant permanent shift in thresholds in service. In addition, the examiner found that the Veteran's noise exposure in service alone cannot establish a nexus. The Board agrees that the Veteran's service treatment records (STRs) are silent for treatment or a diagnosis of right ear hearing loss while the Veteran was in active service. However, in his September 2020 hearing, the Veteran testified that he first experienced hearing loss while in active service and has continued to experience hearing loss since his separation. In this regard, the Board notes that the Veteran is competent to report when he first experienced hearing loss and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995). Moreover, the Board finds the Veteran to be credible. Additionally, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson,492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran has competently reported that he first experienced right ear hearing loss while in active service and that he has continued to experience it since that time, and those statements have been found credible by the Board. Moreover, the Veteran has a current diagnosis; and, as noted in the Board's prior decision, acoustic trauma in service has been conceded based on the Veteran's military occupational specialty as a radio repairman. Further, although the VA examiner provided a negative nexus, the examiner did not provide a medical rationale and/or explanation as to why the Veteran's current hearing loss could not be caused solely by the Veteran's in service noise exposure. Therefore, the Board finds that the preponderance of the evidence supports the claim of entitlement to service connection for right ear hearing loss. Therefore, entitlement to service connection for right ear hearing loss is granted. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran contends service connection is warranted for a back disability. The Veteran's STRs are silent for treatment or a diagnosis of a back condition; however, in his September 2020 hearing, the Veteran reported experiencing back pain in service when he was tasked with loading and unloading artillery rounds. In a July 2022 VA examination and opinion, the examiner found that the Veteran's back condition is less likely related to service since there was no documented evidence of a back disability in service and no evidence of chronicity of care. The examiner further found that the Veteran's symptoms are subjective only and noted that the Veteran did not have a back disability. The Board notes, however, that in the examination, the examiner found that the Veteran's back exhibited abnormal range of motion that causes functional loss. In addition, the examiner further found that the Veteran's back has pain with weightbearing and active motion, and that pain causes functional loss. Given these findings, the Board concludes that, contrary to the examiner's finding, the Veteran does have a current back disability as pain with functional loss is considered a disability for VA compensation purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the Board finds the opinion is inadequate in this regard. Further, the Board finds the examiner's opinion concerning chronicity of care is inadequate as the non-documentation of chronicity of care and/or treatment is an insufficient rationale to support a negative opinion. Rather, the question for consideration is whether the Veteran exhibited continuity of symptoms. See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (symptoms, not treatment, are the essence of any evidence of continuity of symptomatology). Here, the Veteran testified in his hearing that he began experiencing back pain in service when he was tasked with loading and unloading artillery rounds. He further testified that he sought treatment after service from private clinicians who provided him with medicine for pain. As mentioned previously, the Veteran is competent to testify as to the onset and continuity of symptomatology and the Board finds his statements credible. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Therefore, remand is warranted to obtain a new examination and medical opinion with consideration of the Veteran's lay statements and current diagnosis. While on remand, the RO should attempt to retrieve the Veteran's private treatment records. The Board recognizes that the RO attempted to obtain these records in November 2020; however, the Veteran did not provide an authorization or release as requested. As the matter is being remanded, the RO should make a second attempt. However, the Veteran is advised that the duty to assist is not a one-way street; a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Board. App. 190 (1991). See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran does not cooperate, the matters will be decided solely on the evidence of record. 2. Entitlement to service connection for a right lower extremity disability is remanded. In the Veteran's July 2021 VA back examination, the Veteran was found to have right lower extremity radiculopathy. Therefore, the Board finds that the claim is inextricably intertwined with his claim of service connection for a back disability. Thus, remand is warranted. 3. Entitlement to service connection for a skin disability is remanded. In the Veteran's July 2021 skin examination, the examiner diagnosed the Veteran with an unspecified skin condition located on his lower neck, chest, upper arms, and shoulders. However, the examiner found that the condition was not related to service. In doing so, the examiner noted that the Veteran's documented rash in service was acute as his discharge exam was negative for a skin condition. The examiner further noted that there is no evidence of chronicity of care and his symptoms are subjective only. As mentioned, the lack of chronicity of care is insufficient to support a negative opinion. Further, while the examiner indicated the Veteran's symptoms were subjective, this is inconsistent with the objective medical evidence from the examiner where he diagnosed the Veteran with an "unspecified skin condition" on the upper portion of his body. Therefore, remand is warranted to obtain a new examination and etiology opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 3. After the above development is accomplished, schedule the Veteran for appropriate VA examinations. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiners as part of the examination. All tests, studies, and evaluations should be performed as deemed necessary by the examiners, and the results of any testing must be included in the examination report. After considering the pertinent information in the record in its entirety, the VA examiner should provide the following opinions: BACK: Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater), that any identified back disability, to include pain with functional impairment, was incurred in or caused by his active duty service. RIGHT LOWER EXTREMITY: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater), that the Veteran's right lower extremity disability was incurred in or caused by his active duty service. (b) If the Veteran's back disability is found to be related to service, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater), that the Veteran's right lower extremity disability was proximately caused or aggravated by his back disability. SKIN: Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater), that the Veteran's skin disability was incurred in or caused by his active duty service. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, and all other lay evidence of record, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 4. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.